JUDGMENT P.T. Raman Nayar, J. 1. The property in suit, seven acres and odd of unassessed land bearing R. S. No. 221 of Vettikattiri village, was the subject matter of a proceeding under S.145 Cr. P. C. between the three plaintiffs on the one hand and the defendant on the other. (Plaintiffs 1 and 2 claimed, and still claim, item No. 1 in the plaint, the plot marked A in the Commissioner's plan, Ext. C4, and the 3rd plaintiff, item No. 2, marked as plot B. The small portion marked T in the south east corner of the survey field covered by a Cholakulam or spring fed tank is outside the scope of the suit and was the subject matter of another suit, between plaintiffs 1 and 2 on the one side and the defendant on the other, which was tried along with the present suit but with which we are not here concerned, The original defendant died pending suit, and defendants 2 and 3, the respondents to this appeal, were brought on record as his legal representatives. That circumstance may however be ignored for the purposes of the present discussion and I shall make reference only to the original defendant whom I shall call merely the defendant). The learned Magistrate found himself unable to decide which of the parties was in possession and so on 30-11-1955, in terms of S.146 of the Code as it stood before amendment by Act 26 of 1955, he attached the property pending decision by a competent court as to the rights of the parties thereto and put the property in the hands of a receiver. On 9-1-1956, the plaintiffs brought the present suit for a declaration that they had both title and possession, that the defendant had neither, and that the property should be released to them, by whom or from what the plaint did not expressly say, but, obviously, by the receiver fee of the attachment. The first court finding both title and possession in the plaintiffs declared their suit. On appeal, the lower appellate court affirmed the finding of the first court on the question of title but nevertheless dismissed the suit holding that the plaintiffs had failed to discharge the onus that lay heavily upon them to prove possession within the 12 years preceding the suit. Hence this second appeal by the plaintiffs. 2. On appeal, the lower appellate court affirmed the finding of the first court on the question of title but nevertheless dismissed the suit holding that the plaintiffs had failed to discharge the onus that lay heavily upon them to prove possession within the 12 years preceding the suit. Hence this second appeal by the plaintiffs. 2. I might observe at the very outset that this is not a suit for possession so as to cast upon the plaintiffs the burden of proving title and possession within the statutory period. An attachment of disputed property effected under S.146(1) of the Criminal Procedure Code -- I am speaking of the Code as it stood at the relevant time -- is, under the terms thereof, "until a competent court has determined the rights of the parties thereto or the person entitled to possession thereof." So what a competent court that has been moved in the matter -- by whom is a matter of no consequence -- has to determine is the rights of the parties to the property or who is the person entitled to possession thereof. In a case like the present, what the competent court has to decide is which of the parties has the right to present possession, in other words, subsisting title to possession; and this, I might add, it has to determine with reference, not to the date of the institution of the suit, but the date of the attachment, possibly the date of the preliminary order under S.145(1) of the Code. A mere finding that the plaintiff has not been able to prove his right to present possession will not amount to a finding that the defendant has, and enable the defendant to obtain the property free of the attachment. For that there must be a positive finding that the defendant has proved his right to present possession. The suit is really in the nature of an interpleader suit, and the court is called upon to give a positive finding as to which of the contesting parties is entitled to possession. The onus lies on him who would have the court give such a finding in his favour; in other words it lies equally on both sides; and no particular onus rests on the plaintiff by reason of the accident that it was he rather than the defendant that moved the court. The onus lies on him who would have the court give such a finding in his favour; in other words it lies equally on both sides; and no particular onus rests on the plaintiff by reason of the accident that it was he rather than the defendant that moved the court. Either one or the other of the parties to the dispute has to move the court since the old S.146 unlike the new section makes no provision for a reference by the Magistrate. But the fact that the court has to be moved by one or the other of the parties does not alter the question it has to decide. The question is, in terms of the section, which of the disputants is entitled to possession, just as if the matter had been referred to the court by the Magistrate instead of the parties being left to move the court by way of suit. Even in an ordinary suit, onus loses much of its significance when evidence has been adduced by both sides. When that has been done, the court has to decide one way or the other on the evidence and it is rarely that it should find itself constrained to depend upon the onus to arrive at its decision. But, in a case like the present, where the question is not whether the plaintiff has proved his right to possession, but is which of the parties has proved his right to possession, and a finding that the plaintiff has not proved his right does not imply the consequence that the defendant has (which it would in an ordinary suit by reason of the dismissal of the suit), the court has to give a positive finding in favour of one party or the other and cannot have resort to a non existent onus. 3. In the present case the finding on the question of title is concurrently in favour of the plaintiffs, and no question of law, such as the construction of a document, is involved in that finding. It has however been contended that the judgments of the courts below, in particular that of the lower appellate court, are confused and that lower appellate court has, in effect, blindly accepted the finding of the Trial Court without coming to a decision of its own. It has however been contended that the judgments of the courts below, in particular that of the lower appellate court, are confused and that lower appellate court has, in effect, blindly accepted the finding of the Trial Court without coming to a decision of its own. This, it is said, is a substantial defect in procedure warranting interference under clause (c) of sub-s.(1) of S.100 of the Civil Procedure Code. No doubt the judgments are not so clear and the discussion by the lower appellate court not so full as one would have liked, but I think the criticism is very much exaggerated. I do not think there is such a lack of clarity or such an inadequacy in the discussion as to amount to a substantial error or defect in procedure, and, in any case, I am satisfied that there has been no error or defect in the decision of the question of title upon the merits. For, it seems to me clear enough on the evidence that the finding in favour of the plaintiffs on that question is correct. 4. The case of the plaintiffs is that, although by some mistake the suit property stands registered in the patta, Patta No. 2 of the Para Nambi of Malappuram, a local sthani, it is in truth the ancient jenm of the family of plaintiffs 1 and 2 who are brothers. (It is said on behalf of the plaintiffs that there are certain Muslim families the plaintiffs are Muslims which, probably because they are Nambudiri converts hold ancient jenm, but it is really not necessary to go into this question). By Ext. A4 dated 3-8-1900, Athan, the father of plaintiffs 1 and 2, sold item 2 of the plaint (plot B of the Commissioner's plan, Ext. C4) to the grandfather of the 3rd plaintiff. Plot B was thereafter in the possession of the vendee and his successors while plot A continued to be in the possession of the father of plaintiffs 1 and 2, and, after him, of the plaintiffs. In Ext. C4) to the grandfather of the 3rd plaintiff. Plot B was thereafter in the possession of the vendee and his successors while plot A continued to be in the possession of the father of plaintiffs 1 and 2, and, after him, of the plaintiffs. In Ext. A13 dated 7-6-1939, a deed of partition in the tarwad of the defendant, plot A was fraudulently included (in tak 2 of item 16) as if it were the property of the tarwad and was allotted in the partition to the tavazhi described therein as the 2nd tavazhi of which tavazhi the defendant, who was a party to the deed, was not a member.With a view to avoid trouble and in this connection it must be remembered that, according to their case of ancient jenm, plaintiffs 1 and 2 could have had no documents of title, the patta according to them standing mistakenly in the name of the Para Nambi when, by Ext. A12 dated 10-2-1948, the 2nd plaintiff bought certain properties from the 2nd tavazhi, he took the opportunity of including the suit property also in his purchase (as item 6 of the deed) so as to put an end to the pretensions of the defendant's tarwad. 5. The case of the defendant on the other hand is that the property belongs in jenm to the Para Nambi, that in or about 1030 M. E. (1854-55 A. D.), Chathu Nair a grant uncle of the defendant, obtained it on oral lease and that some time later Chathu Nair made over his rights to his nephew, Govindan Nair, an uncle of the defendant, who on 16-4-1901 executed a registered lease deed in favour of the Para Nambi. Govindan Nair made over his leasehold right to the defendant's mother, and, on her death, the defendant inherited it. Thus, from 1030 M. E. (1854-55 A. D.) onwards, the defendant, and his predecessors before him, have been holding the property as lessees under the Para Nambi. 6. The defendant is a party to Ext. A13, and, if in truth, item 1 of the suit property is included in item 16 of that document, allotted thereunder to the 2nd thavazhi of which the defendant was not a member, that would conclude his pretensions to title to that property since he has no case that there was a mistake in Ext. A13, and, if in truth, item 1 of the suit property is included in item 16 of that document, allotted thereunder to the 2nd thavazhi of which the defendant was not a member, that would conclude his pretensions to title to that property since he has no case that there was a mistake in Ext. A13 and his only case is that no part of the suit property is included therein. It is the undisputed case that tak 1 of item 16 of Ext. A13 is the plot marked C in R. S. No. 220/1 in the Commissioner's plan, Ext. C4. And, so far as tak 2 is concerned, while it is the case of the plaintiffs that it comprises the plots marked D and A (the former being a part of R. S. No. 220/1, and the latter, item 1 of the suit property) it is the case of the defendant that this tak takes in only R. S. No. 220/2 and plot D and does not extend to plot A in R. S. No. 221. The survey numbers given in the document, namely, R. S. No. 220/1 and 220/2 doubtless support the defendant's case but that is as far as his case goes. For, the boundaries and the measurements given clearly show that plot A in R. S. No. 221 is also included in tak 2 of item 16 of Ext. A13. The eastern boundary of this tak as described in the document is undisputedly the rock marked B in Ext. C4, and, measured from this boundary, the east to west measurement given extends westwards beyond the line demarcating R. S. No. 220/1 from R. S. No. 221 and extends roughly to the line between plots A and B in R. S. No. 221. What is more important is that the western boundary is described as Kangaparamba which the defendant has admitted in his evidence is a name by which plot B is known, being probably only a corruption of its true name Kavungalparamba. The southern boundary includes the tank, plot T, as also Kakkangot Paramba, R. S. No. 222/4B which, as the plan Ext. The southern boundary includes the tank, plot T, as also Kakkangot Paramba, R. S. No. 222/4B which, as the plan Ext. C4 shows, takes one to the western end of plot A. In fact it is not necessary to consider this question of boundaries at any great length in view of the defendant's own statements as D. W. 1 giving the names of the several lands bounding plot A on the north, south and west which fit in with the boundaries given for tak 2 of item 16 in Ext. A13 and which go to show that plot A is included in that tak. 7. Plaintiffs 1 and 2 have still to prove their case that plot A is included in their purchase under Ext. A12 as item 6 thereof. In this document the property is described as Parakkundu Paramba, a name by which it is admitted the suit property is known although it is known also as Vellikettu Mala Paramba and as Kakkangot Mala Paramba. The survey number as given is R. S. No. 220/2 which is an obvious mistake since neither the boundaries nor the measurements fit in with those of that survey field. The eastern boundary is shown as the rock marked ' B and the east west measurement takes one beyond the limits of R. S. No. 220/1 to the western boundary of plot A in R. S. No. 221. The southern boundary also, as admitted by the defendant himself as D. W. 1, includes the tank and the Kakkangot Mala Paramba, namely, R. S. No. 222/4B and therefore extends to the western end of plot A. The western boundary is given as Neerozhukkam Paramba which seems to be another name for Kavungalparamba, while the northern boundary though not very specific -- it is described merely as Kudiyiruppu -- would fit in with the northern boundary of R. S. No. 221. In any case, since the southern boundary given extends up to the western limits of plot A it seems clear that this plot is included in item 6 of Ext. A12. 8. So far as the defendant's title is concerned, the utmost that can be said in his favour is that he has been circumspect enough to choose the Para Nambi, in whose name the patta admittedly stands, as the person under whom to claim title. A12. 8. So far as the defendant's title is concerned, the utmost that can be said in his favour is that he has been circumspect enough to choose the Para Nambi, in whose name the patta admittedly stands, as the person under whom to claim title. Patta by itself is no proof of title, although it must be conceded that in the case of ancient jenm in respect of which there have been no transactions it is often the only available documentary evidence of title. But, we are here not concerned with deciding title as between the plaintiffs on the one hand and the Para Nambi on the other, and are confined to the question of who has title as between the plaintiffs and the defendant. The defendant has singularly failed to prove his alleged lease under the Para Nambi the only evidence in support of this is his bare word of mouth. Documentary evidence should have been forthcoming if indeed there was a registered lease in favour of defendant's uncle, Govindan Nair, and yet no such evidence was produced and no satisfactory explanation is forthcoming. The defendant depends also on several oral assignments for his title. Oral assignments seem to me highly improbable even if they are legally valid. The defendant sought to prove through D. W. 2, who claimed to be a Kariasthan of the Para Nambi, certain entries in the books kept by the para Nambi to show that the defendant was a tenant under the Para Nambi in respect of the suit property and had been paying rent therefor. The first court has given very good reasons for rejecting these entries as interpolations which they obviously are. The lower appellate court has agreed with the first court and no attempt has been made to commend this piece of evidence for my acceptance. The defendant has also put in two documents, Ext. B2 dated 28-4-1947 being an unregistered lease deed executed in his favour by one Avara, and Ext. B3 dated 19-3-1954 being a registered surrender deed by this same Avara. These deeds comprise the suit property among other properties, and the defendant's case is that, between 1947 and 1954, Avara was in charge of the properties in pursuance of the lease. This Avara is not a witness and I have little doubt that Exts. B2 and B3 are documents created for the occasion. These deeds comprise the suit property among other properties, and the defendant's case is that, between 1947 and 1954, Avara was in charge of the properties in pursuance of the lease. This Avara is not a witness and I have little doubt that Exts. B2 and B3 are documents created for the occasion. In this connection it is significant to note that the surrender deed of 1954 executed after the disputes began is registered while the lease deed of 1947 is not. No explanation is forthcoming excepting that the defendant found it inconvenient to have the lease deed registered, and the inference is legitimate that both the lease deed and the surrender deed came into existence at the same time in order to furnish evidence of the defendant's claim to the suit property. The first court has also shown how, consistently with the defendant's evidence, he did not hold the suit property on 28-4-1947 when the lease deed Ext. B2 purports to have been executed. In any event, these two documents in proof of the operative nature of which there is only the word of mouth of the defendant, cannot carry his case any further than his own oral testimony. 9. Turning now to item 2 of the plaint, plot B of the Commissioner's plan Ext. C4, the finding of the courts below is that this item is comprised in the sale deed, Ext. A4, executed by the father of plaintiffs 1 and 2 in favour of the grandfather of the 3rd plaintiff. Although the boundaries given in the document are not very specific, from the name given to the property conveyed, namely, Kavungalparamba and its measurements, as also from the description of the western boundary as Kavangalparamba Pallimanhayal which it would appear is R. S. No. 627 and the description of the eastern boundary is Kakkangot Paramba, which is one of the names by which plot A and R. S. No. 220/1 are known, this identification made by the courts below seems to me correct. In any case no attempt has been made before me to show that it is wrong. In any case no attempt has been made before me to show that it is wrong. It is true that there is no evidence apart from the oral assertion of the 1st plaintiff as P. W. 1 and the 3rd plaintiff as P. W. 2, of the plaintiff's claim that the property was the ancient jenm of the family of plaintiffs 1 and 2, but the position is that whereas the 3rd plaintiff has at least Ext. A4, a registered document of 1900, as the root of his title, the defendant has nothing whatsoever apart from the circumstance that the patta stands in the name of the Para Nambi under whom he has chosen to claim with, as I have already shown, no success. Therefore, as between the 3rd plaintiff and the defendant, I have little hesitation in holding with the courts below that the 3rd plaintiff has title. 10. Proceeding now to the question of possession, as I have already said, this is not a suit for possession coming under Art. 142 of the Limitation Act so as to cast on the plaintiffs the onus of proving possession within the 12 years preceding the suit. The question is, who is the person entitled to possession ; and once one of the parties succeeds in establishing his title it would be for the opposite party to show that that title has been lost by dispossession or discontinuance of possession or adverse possession, for beyond the statutory period. And I should imagine that a case where a court competent to decide the fact of possession, although not a court competent to adjudicate on the rights of the parties, finds itself unable to decide who is in possession, would ordinarily be a case to which the presumption that possession follows title will apply so that it would be for the party asserting that possession is not with the owner to prove that. All this apart, I think with the Trial Court, that the evidence regarding possession is in favour of the plaintiffs rather than of the defendant. 11. As the courts below have found, the intrinsic value of the oral evidence regarding possession adduced by both sides is more or less equal. All this apart, I think with the Trial Court, that the evidence regarding possession is in favour of the plaintiffs rather than of the defendant. 11. As the courts below have found, the intrinsic value of the oral evidence regarding possession adduced by both sides is more or less equal. But, I agree with the first court that there are other pieces of evidence which provide strong reasons for preferring the evidence adduced on behalf of the plaintiffs to the effect that they and their predecessors have all along been in possession, have planted cashew trees on the property, and have occasionally raised crops on portions of the property either directly or through tenants, paying tax in respect of this cultivation. In the first place, the report of the Commissioner discloses, what is indeed not disputed, that there is nothing on the ground to demarcate item 1 of the suit property, plot A of the Commissioner's plan, from R. S. No. 220/1, plot D of the plan, lying to its east. R. S. No. 220/1 admittedly belongs to plaintiffs 1 and 2 and has undisputedly been in their possession at least since their purchase under Ext. A12 dated 10-2-1948 -- their case is of course, that it has at all times been in their possession. They have grown cashew trees on that land and it would appear that the cashew trees in plot A are more or less of the same age so that to all appearances plot A seems to be of a piece with plot D. On the other hand, plot B which the 3rd plaintiff claims under Ext. A4 is clearly demarcated from plot A by ridges on the north, east and south and from the wet land to the west by a fence. This is in keeping with the separate ownership of plot B and with the evidence of the 3rd plaintiff that, after the purchase under Ext. A4, this plot was enclosed with mud walls which have, in course of time, fallen down and are now no more than ridges. The defendant's evidence that the ridges were put up by him to arrest the flow of water is most unconvincing. A4, this plot was enclosed with mud walls which have, in course of time, fallen down and are now no more than ridges. The defendant's evidence that the ridges were put up by him to arrest the flow of water is most unconvincing. There is no reason why, if plots A and B belonged to the defendant and were in his possession, ridges to arrest the flow of water should have been put up by him so as to demarcate a piece of land conforming to the measurements and boundaries of the land covered by Ext. A4. 12. Ext. A11, a certified extract from the Azmoish of the village shows that in fasli 1353 (1945-46) the first plaintiff grew Chama on 80 cents and modan on 23 cents of land in R. S. No. 221 and that in fasli 1355 (1947-48) he grew ginger and vegetables on an extent of 56 cents in the same survey field. Exts. A5 to A7 show that the 1st plaintiff paid land revenue for patta No. 2 in the name of the Para Nambi in 1933, 1942 and 1943 and his evidence that these payments were in respect of the suit property stands uncontradicted. Exts. A8 to A10 show payments of land revenue for the same patta by one Kunhi and by one Ali in the years 1945, 1946 and 1951, and the evidence of the 3rd plaintiff is that Kunhi and Ali cultivated portions of plot B under him in those years and that these payments were in respect of that cultivation. In fact, the defendant admitted that Kunhi and Ali were cultivating portions of the suit property, but adduced no evidence whatsoever in proof of his oral assertion that they were cultivating under him. If indeed they were cultivating under the defendant, it is not easy to understand how the tax receipts found their way into the hands of the 3rd plaintiff who it was that put them into court. There can therefore be little doubt that the 3rd plaintiff's evidence that Kunhi and Ali were cultivating under him must be true. 13. Exts. A5 to All thus clearly establish that, during the several years to which they relate, the plaintiffs or persons holding under them were cultivating portions of the suit property and were paying tax in respect of the cultivation. 13. Exts. A5 to All thus clearly establish that, during the several years to which they relate, the plaintiffs or persons holding under them were cultivating portions of the suit property and were paying tax in respect of the cultivation. As against this, the only evidence of possession in favour of the defendant, apart from the oral testimony, is the admitted fact that he has been paying tax in respect of two jack trees standing in the suit property. Exts. B8 to B13 are the receipts produced to prove this payment from 1359 to 1364, but proof is unnecessary, the fact that the defendant has been paying tax on the trees being admitted. But these trees stand in the extreme south-eastern corner of R. S. No. 221 on the banks of the tank T which is not part of the suit property. The assertion of the plaintiffs that the trees are in the suit property notwithstanding, it seems to me extremely doubtful whether that is really so the Commissioner's report shows that the trees stand to the east of the tank which is virtually in the south eastern corner of R. S. No. 221 so that it would appear that the trees stand in the part covered by the tank which is excluded from the suit and, in any case, payment of tax on trees standing on the very boundary of the property is not of much significance. 14. I might add that, even if this were a suit for possession, I would have held on the evidence that the plaintiffs have proved title as also possession within 12 years preceding the suit. I have however dwelt on the question of onus at some length because it seems to me that the assumption made by the lower appellate court that a very heavy onus lay on the plaintiffs to prove possession within the 12 years preceding the suit, has coloured its appreciation of the evidence on the point. 15. In the result I allow this appeal, set aside the decree of the lower appellate court, and restore that of the first court with costs throughout.